¶1(dissenting).
¶2In my judgment the majority opinion is based on a false premise. To me it assumes that plaintiff had a right to be on the bridge under construction which I think is incorrect. The defendant was constructing the bridge for the Oklahoma Highway Department but the plaintiff had nothing to do with its construction. He was an inspector of asphalt paving and was not shown to have anything to do with the construction of the bridge. He was definitely not an inspector on this bridge. As to the bridge he was a trespasser. He had the right to inspect the tie up of the paving on the bridge and the highway which was not on the bridge. This bridge was not open to traffic. Plaintiff’s witness Ward testified on cross-examination as follows:
“Q. And on September 28th, this bridge was not completed ?
“A. That’s correct.
“Q. The public wasn’t on it? It ' wasn’t travelled ?
“A. Not officially, no.
*530“Q. It was barricaded, wasn’t it?
“A. Yes.
“Q. There was a bridge inspector on the job daily, wasn’t there?
“A. Yes.
“Q. That was his job to be on the bridge ?
“A. Yes.
“Q. Mr. Harris had no job to perform on the bridge did he except to see that the asphalt came up to the bridge properly?
“A. That’s correct, I believe.” (Emphasis supplied.)
At one place in his testimony plaintiff testified:
“Q. You were interested in the surfacing of the roadway that came up to the bridge?
“A. Yes.
' “Q. You had no interest in the bridge?
“A. Only to see that the asphalt tied in to the pavement.
“Q. This bridge was not part of your duties?
“A. No sir.”
¶3It is well settled that as a general rule no duty exists toward a trespasser except to refrain from wilfully or wantonly injuring him. 65 C.J.S. Negligence § 24.
¶4Certainly if plaintiff were not a trespasser he could not be anything more than a licensee by permission. See 65 C.J.S. Negligence § 32, subsection b at p. 488. A licensee by permission was defined in •Millspaugh v. Northern Indiana Public Service Co., App.Ct. of Ind., 12 N.E.2d 396, at page 401 as follows:
“The courts recognize two classes of licensees; namely, licensees by invitation and licensees by permission. To a licensee by invitation the occupant of the premises assumes the obligation of making and maintaining them in a reasonably safe ■ condition for the use of the licensee while he remains thereon by virtue of such invitation, and, for a violation of this duty, the owner is liable in damages to a person injured thereby who is himself free from contributory negligence. A licensee by permission is one who for his own convenience, curiosity, or entertainment, goes on the premises of another by his (the owner or occupant’s) permission or sufferance. Such a licensee takes the premises as he finds them as to any defects thereon, and the owner is not liable for any injuries resulting to such licensee owing to defects in the condition of the premises. The owner is not liable for passive negligence. Cleveland, C., C. & St. L. Ry. Co. v. Means, 1914, 59 Ind.App. 383, 104 N.E. 785, 108 N.E. 375; Thistlewaite v. Heck, 1920, 75 Ind.App. 359, 128 N.E. 611, 612.”
¶5In Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31, we said:
“In differentiating between an invitee and a licensee, an invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.”
¶6I submit there was no common interest or mutual advantage to plaintiff and defendant in this case by virtue of plaintiff going on this bridge which was away from his duties.
¶7The plaintiff relies on Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L.R.A.1917A, 128. I do not think it is controlling or in point.
¶8The distinction between this case and Lisle v. Anderson, supra, is that in the case here the plaintiff had no right to be on the premises while in Lisle v. Anderson, supra, plaintiff had the right to be on the premises and use the joists that caused the accident. The plaintiff in the case at bar must take the premises as he finds them and there is no duty on the defendant to insure him a safe place to view the asphalt work.
¶9There is nothing in the law that requires a contractor on a public job to protect an employee of the contractee from possible *531injuries from falling on incompleted parts of the bridge, which employee has nothing to do with the construction of a public improvement on which the contractor is engaged.
¶10Plaintiff’s own testimony showed he had completed any work he might have where the tieing in was taking place.
¶11I dissent to the majority opinion.